' KHALID MEHMOOD, J.---Convict-appellant Gulfaraz was tried by learned Zilla Qazi/Sessions Judge, Dassu Kohistan under sections 302/109/34, P.P.C., and on conclusion of trial vide judgment dated 4- 11-2009, he was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and also directed to pay Rs,2,00,000 as compensation under section 544(A), Cr.P.C. To the legal heirs of the deceased or in default to further suffer six months' S.I. However, benefit of section 382-B, Cr.P.C.
Was extended to the convict appellant.
2. Briefly stated the facts of the prosecution case are that convict appellant and acquitted co- accused namely Nazir and absconding co-accused Ibrahim have been charged for the murder of deceased Sher Ali. Convict appellant also stands charged for the murder of his wife Mst. Maryam deceased. According to prosecution, convict appellant has committed the murder of his wife as well as Sher Ali as he was suspecting illicit relations in between them.
3. Case was put in court and trial commenced. The prosecution examined six witnesses in all.
Statement of accused was recorded under section 342, Cr.P.C. Who did not opt either to produce defence evidence or to be examined on oath. On assessment of evidence the accused was convicted and sentenced by the trial Court as mentioned above.
4. Learned counsel for the appellant contended that prosecution has failed to prove its case against appellant beyond any shadow of doubt. There is no independent direct evidence or circumstantial evidence of the commission of crime. It was also argued that nothing incriminating was recovered during investigation from the possession of convict appellant. It was further argued that the learned trial Court sentenced the appellant on the basis of conjectures and surmises.
Learned counsel while concluding his arguments submitted that appellant is entitled to be acquitted by giving him benefit of doubt as a single doubt in the case would be sufficient for the purpose of acquittal.
5. On the contrary, learned State counsel assisted by learned counsel for the complainant opposed the arguments advanced by the learned counsel for the appellant and contended that accused has firstly committed murder of his wife and then murdered the deceased Sher Ali on suspicion. It was argued that the trial Court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. The prosecution story is supported by statements of eye-witnesses, other P.Ws. And corroborated by recovery of blood-stained wooden piece and motive and accused deserves no leniency. It was prayed that sentence awarded by the trial Court meets the ends of justice which may be confirmed.
6. Arguments heard and record perused.
7. Admittedly, Mst. Maryam wife of convict appellant was done to death and there is nothing in the shape of direct or circumstantial evidence which could show that who has actually done her to death and on the same day Sher Ali deceased was murdered. There is no report regarding the murder of Mst. Maryam has been recorded. However, report with an unexplained inordinate delay regarding murder of Sher Ali has been registered against the convict appellant and his co- accused. The prosecution has abandoned the, independent eye-witnesses namely Gulab etc. Who took the dead body of deceased from spot to the house of deceased for reasons best known to the prosecution.
8. The prosecution has examined six P.Ws. Out of which two are eye-witnesses of the present occurrence. The rest of P.Ws. Are government officials. No postmortem report is available as complainant party did not want the autopsy of deceased. In the light of evidence recorded, the following propositions have been made to resolve the legal and factual aspect of the present case:--
(a) Whether eye-witnesses were present at the relevant time of occurrence?
(b) The impact of non-conducting of postmortem of deceased and murder of Mst. Maryam wife of Gul Faraz.
(c) The impact of murder of Mst. Maryam and non-registration of case and as a result thereof, non-investigation into the murder of Mst. Maryam and its effects.
(d) Whether the I.O. Has conducted fair and honest investigation in the present case?
(e) Whether the motive advanced by the prosecution has been proved by the prosecution?
(f) Seven hours delay in lodging of F.I.R.
' These are the points which require thorough reappraisal of evidence.
9. P.Ws.3 and 4 who are cited as eye-witnesses in the present case have categorically stated that they have equal enmity with the appellant due to local elections dispute. Eye-witnesses have not disclosed that from which point deceased was called by the appellant Gul Faraz and how much distance deceased covered on his call. After how much distance they opened fire at the deceased.
In the site plan, both the P.Ws. Are shown present near the appellant but they did not fire at the said P.Ws. Who had equal enmity with the accused. In the site plan, seven empties have been shown recovered from the presence of Ibrahim absconded accused. It is also mars of the conduct of eye- witnesses that instead of taking the deceased to the hospital for treatment or proceeding to the police for lodging of the report, they took dead body to the house of deceased. P.W.3 stated that round about 20 persons attracted to the spot who took out the dead body of the deceased to the house. During shifting the dead body his clothes and blanket used as cover of the dead body of the deceased were blood-stained. To substantiate the presence of eyewitnesses, prosecution failed to examine a single witness who attracted to spot and took the dead body to the house of deceased nor blood stained clothes and blanket were produced to the I.O. Occurrence had taken place at 1200 hours at noon time whereas report was lodged at 1900 hours. This unexplained inordinate delay of seven hours had also created serious doubts because occurrence had taken in the month of July, 2001 and keeping the dead body in the house for such a long time is not appealable to a prudent mind. The conduct of complainant party and un-explained inordinate delay in lodging of report has strengthened the plea of defence that report has been lodged after consultation and deliberation. In this respect, reference can be made to case of Muhammad Afzal and three others v. State reported in 2007 YLR 111.
"S-302 @ First Information Report (F.I.R.)
' F.I.R. Reported and recorded at a place other than the police station would be seen with doubt.
Held: Whether F.I.R. Was lodged with promptitude has to be seen with other facts and circumstances of the case."
10. The complainant in the F.I.R. Had stated that Mst. Maryam wife of Gul Faraz appellant was also murdered and this fact was brought to the notice of IO.. And the same fact is also mentioned in the site plan which shows that police has also inspected the place of occurrence wherein Mst. Maryam deceased was murdered. Neither an F.I.R., nor site plan to this respect has been prepared by the I.O.
Entire evidence is silent about the result and investigation regarding the murder of Mst. Maryam.
Investigating Officer apparently did not conduct fair investigation to unviel the relevant facts and to book the real culprits for the murder of Mst. Maryam. The complainant had stated that postmortem of the deceased was not conducted due to application of the complainant but the same application does not bear his signature. Both the P. Ws. The eye-witnesses of the present occurrence had stated that the police had come to their house and inspected the dead body prepared the inquest report in their presence but inquest report is silent about the place where from the dead body was found: It was also admitted by P.W.4 that deceased and Gul Faraz appellant are close relatives inter se. He also admitted that one day before the occurrence son of the deceased had died and people were coming for condolence of the deceased. Hence, it does not appeal to a prudent mind that on the next day of sad demise of his son, deceased instead of attending the-guest who were coming for condolence, left the house along with his cattle and proceeded to the village of appellant.
11. Murasla was prepared by Sarbali but said Sarbali has not been produced by the prosecution nor any report of his inability to attend the court was recorded. P.W.5 Raja Mahboob Khan had conducted initial investigation of the present occurrence and prepared site plan, recorded the statement of witnesses and also prepared the recovery memos of empties; blood-stained clothes and prepared the injury sheet and inquest report of Mst. Maryam. He also admitted that F.I.R. Was chalked out on the next day of occurrence. Whenever a report instead of lodging in PS is lodged at spot or in the way to police in shape of murasla is based for investigation the very foundation becomes doubtful and shakey. In such cases courts are always conscious regarding the credibility of the investigation and accusation of charges against accused. In present case, report is not lodged on spot rather it is lodged at the house of deceased that too after delay of seven hours. The verdict of Apex Court in case of Allah Bachaya v. State reported in PLD 2008 SC 349 has enlightened the such kind of report as under:-- "(d) Criminal Procedure Code (V of 1898)
S. 154--- First Information report not recorded at Police Station---Effect---Such report would suffer inherent doubt that same was recorded at the spot after due deliberations."
12. In fact, inquest report of Sher' Ali deceased was prepared by the said Sarbali. Similarly injury sheet of deceased Sher Ali site plan and recovery memo was prepared by Sarbali whereas Mehboob Ali Khan P.W. Has prepared the inquest report, injury sheet of Mst. Maryam but has not prepared the site plan neither chalked the F.I.R. Regarding the murder of Mst. Maryam which shows that investigation was not conducted honestly and fairly. Being police official said I.O. Had not performed his duties under the law to which he was obliged to do so. He has also admitted that at the time of preparation of site plan he was not in possession of the F.I.R. Whereas in the inquest report and other recovery memos the F.I.R. Number has been mentioned which clearly indicates that all the proceedings were carried out after the chalking of F.I.R. That copy of F.I.R. Was handed over to the I.O. At 1100 a.m. On 3-7-2007. He also stated that he got information of occurrence at 12.30 hours on the same day. He also admitted that he has prepared site plan on the next day of occurrence at 12.30 hours noon. He also contradicted his own statement while in his cross- examination he stated that he reached to the spot at 5-30 p.m. On the day of occurrence and he has prepared the site plan on the same day of occurrence at 1200 hours at the night time and it was completed at the same night at 12.30 hours. The statement of said P.W. Is full of contradiction and not trustworthy. In this respect, reference can be made to case of "Khalid alias Khalidi and 2 others v. The State" reported in 2012 SCM R 327", wherein it has been held:-- "The incident in the instant case took place at 2-00 p.m., F.1. R. Was recorded at 4/5 a. m, Dr. Muhammad Parvez medically examined the injured persons at, 4-00 a.m. But conducted the post mortem examination of the deceased at 3-00 p.m. i.e, after about ten hours which fact clearly shows that the F.I.R. Was not lodged at the given time. The prosecution has not, for the reasons best known to it, produced Mst. Jannat Bibi, an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported the prosecution version. We, therefore, find that the ocular account is not of such a character which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye-witnesses at the place and time of occurrence is not established as their statements have been disbelieved by the learned appellate court regarding Sultan Mehmood acquitted accused. Reverence is made to the cases report as Ansar Ali and another v. The State (2010 SCMR 1821) Ghulam Mustafa and others v. The State (2009 SCMR 916) and Iftikhar Hussain and others v. The State (2004 SCMR 1185)."
13. So far question of motive is concerned it is categorically stated that motive was dispute over the local council election dispute. Both the eye-witnesses were unable to reply to the question of defence counsel that who were contesting the said election and whom they supported but not only complainant and eye-witnesses failed to substantiate their plea of motive rather the I.O. Had also failed to collect evidence regarding the dispute over the local council election. Though motive is not always of basic proof for the commission of offence. It is only corroboratory evidence for connection of the accused with commission of offence. A However, once motive is specifically alleged then prosecution is bound to prove the same. In this respect, reliance can be made in case titled Muhammad Aslam Khan v. State" 1999 SCM R 172, which is reproduced as under:-- S-302---Constitution of Pakistan (1973), Art. 185---Appraisal of evidence---Enmity of the deceased with persons other than the accused having been established on the record, possibility of his having been killed by his other enemies could not be ruled out---Testimony of eye- witnesses being tainted with animus, they could not corroborate each other---No independent corroborative evidence existed on record to connect the accused with the commission of the crime---Medical evidence had falsified the ocular testimony---Accused was acquitted in circumstances."
14. On the other hand, mysterious murder of Mst. Maryam, inefficiency and unfair investigation has created the clouds of doubts which shrouded upon the entire prosecution case. In the light of above stated reasons, the doubted presence of eye-witnesses and their conduct, unfair investigation, failure to establish motive, concealment of cause of murder of Mst. Maryam, unexplained inordinate delay in lodging of F.I.R., non-production of material witnesses Gulab and Sarbali etc. Have created solid grounds for acquittal of the accused hence we left with no option only to set aside the impugned order of the learned trial Court.
15. In the facts and circumstances of the case, the prosecution has not been able to prove its case against convict appellant by leading cogent, natural and confidence-inspiring evidence. In the prevailing circumstances, the learned trial Court has wrongly convicted and sentenced the appellant.
16. Consequently, this appeal is allowed. Impugned conviction and sentence is hereby set aside and appellant is acquitted of the charge. He shall be set free forthwith if not required in any other case Criminal Revision No,43 of 2009 for enhancement of sentence also stands dismissed.